Problems with Restrictions Formula

4.2 Problems with Restrictions Formula.

 

There is little to choose between Säger formula and that based on obstacles, and in cases such as Kraus, Schindler, and Kranemann the Court used both.

 

Problem 1:: Vague terminology. E.g in Carpenter, what was te obstacle that deterred Mr C from exercising his freedom to provide cross border services? – the separation of husband and wife which would eb detrimental to their family life, or the emotional distress? .. Some cases come close to saying that mere existence of national rule = restriction. This was similar as the Dentist Calgary

 

Problem 2: It makes no reference to size or scale of impediment: Graf indicates we need more than just remote impediment, in most cases it still takes very little to engage Treaties, e.g. Bosal, court found breach of art 49 because Dutch tax rule might “dissuade” parent company from carrying out its activities through intermediary est in another Member State. This decision cost the Dutch treasury millions.

 

Problem 3: Courts inability to deal with justifications that are of political/social policy nature. Demonstrated by facts of Viking. The one with reflagging the ship in Estonia to pay the seamen lower wages.(p 259). In United Pan Europe, however, Court took a more deferential approach. Diverging case law generates unpredictability

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The Market Access approach

4.1 The Market Access approach: Restrictions Liable to Prohibit, Impede, or Render Less Attractive Free Movement

 

Shift from discrimination approach to a restriction approach can be traced back to Säger, where court said that art 56 required “not only elimination of all discrimin…but also abolition of any restriction, even if it applies without distinction to national provides of services and to those of other Member State, when it is liable to prohibit or impede activities or a provider of services est in another Member State where he awfully provides similar services.

 

Säger demonstrated willingness by Court to scrutinize national rules which, even potentially prohibit or impede restrict the individuals right to free movement.

 

Kraus: German student complained of german law that prohibited him to carry his LLM title acquired in UK in Germany. Court held that while measure, thought not discriminatory on grounds of nationality, was liable to hamper or to render less attractive exercise by Union nationals. Abogados de accidentes de auto – But then felt that rule was justified because need to protect public which will not necessary be alerted to abuse of academic titles. Felt it was proportionate and emphasized need for good governance.

 

Gebhard: German Rechtsanwalt set up practice in italy and called himself avvocato without registering in milan bar. Court focused on more general question of whether the measure was liable to prevent or hinder access to the market or exercise of the freedom and, finding it was, had to be justified.

 

But now, Court in more recent cases replaced Säger/Kraus/Gebhard market access formula in favor of the simpler wording, examining whether the national measure constitutes a ‘restriction’ on, or an obstacle to, free movement.

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